Jury Instructions for Arizona’s False Light Invasion of Privacy Claims

In 1989, the Arizona Supreme Court expressly held that Arizona recognizes the version of the false light invasion of privacy tort described in the Restatement (Second) of Torts § 652E (1977). See Godbehere v. Phoenix Newspapers, 162 Ariz. 335, 783 P.2d 781 (1989). In doing so, the court overruled Rutledge v. Phoenix Newspapers, Inc., 148 Ariz. 555, 715 P.2d 124 (App. 1986), which held a plaintiff must prove the elements of intentional infliction of emotional distress claim to prove a false light invasion of privacy claim. Section 652E of the Restatement does not require a plaintiff to prove the elements of an intentional infliction of emotional distress claim to prove a false light invasion of privacy claim.

The Godbehere plaintiffs were public officials, a former Maricopa County Sheriff and his employees. The defendants were Phoenix Newspapers, Inc., the publisher of The Arizona Republic and Phoenix Gazette, and fourteen editors and reporters of the two newspapers. The plaintiffs sued the defendants under the false light theory because they allegedly published dozens of articles in 1985 that portrayed the plaintiffs in a false light. “The publications stated that the plaintiffs engaged in illegal activities, staged narcotics arrests to generate publicity, illegally arrested citizens, misused public funds and resources, committed police brutality, and generally were incompetent at law enforcement.” Godbehere, 162 Ariz. at 335, 783 P.2d at 781. In their lawsuit, the plaintiffs alleged they suffered both reputational and emotional distress damages due to the false light in which they were portrayed.

The defendants argued Arizona should not recognize the false light tort, because it overlapped and was duplicative of the defamation tort. The Godbehere court, after carefully analyzing Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967) and Section 652E (including its comments and illustrations), astutely reasoned that “although defamation and false light often overlap, they serve very different objectives. The two tort actions deter different conduct and redress different wrongs. A plaintiff may bring a false light invasion of privacy action even though the publication is not defamatory, and even though the actual facts stated are true.” See Godbehere, 162 Ariz. at 341, 783 P.2d at 787. The court also wrote: “In most cases, the false light theory will add little if anything beyond the relief a defamation or emotional distress claim will provide. Some cases exist, however, where the theory will protect a small area otherwise lacking protection against invasion of privacy. That interest, we believe, demands protection.” See Godbehere, 162 Ariz. at 342, 783 P.2d at 788.

The court then went on to analyze the First Amendment protections to which defendants who publish false light statements about public officials and their job-related conduct are entitled. The court reasoned public officials may not bring false light claims based on statements made about their job-related conduct. “Finally, publishers contended that even if we recognize false light actions, the action does not lie in this case. They argue that not only do the publications discuss matters of public interest, but plaintiffs have no right of privacy with respect to the manner in which they perform their official duties. We agree.” See Godbehere, 162 Ariz. at 343, 783 P.2d at 789.

Even though the court held public officials may not bring false light claims based on statements related to their on-the-job conduct, it also explained public officials may bring false light claims that are based on statements about their private affairs, if they prove the statements were made with actual malice. “Consequently, we adopt the following legal standard: a plaintiff cannot sue for false light invasion of privacy if he or she is a public official and the publication relates to performance of his or her public life or duties. We do not go so far as to say, however, that a public official has no privacy rights at all and may never bring an action for invasion of privacy. Certainly, if the publication presents the public official’s private life in a false light, he or she can sue under the false light tort, although actual malice must be shown.” Id.

“Actual malice” is a legal term of art. It does not mean what the average person thinks it means. To prove a false light statement was made with actual malice, a plaintiff must prove by clear and convincing evidence that the defendant who made the statement either (a) knew it would portray the public official in a false light or (b) had serious doubts about whether it would portray the public official in a false or true light.

The court acknowledged that it did not address whether a private person who brought a false light claim based on unprivileged statements concerning his private affairs would have to prove actual malice. It wrote:

To this point, we have spoken of false light as requiring that the plaintiff show actual malice. Restatement § 652E seems to state that requirement, but the Caveat to section 652E states that the Institute “takes no position” on whether, under some circumstances, a non-public figure may recover for false light invasion of privacy where he does not show actual malice but does show negligent publication. See also Restatement § 652E comment on Clause (b). Because this case does not present the issue, we also take no position on the validity of a false light action for negligent publication. Suffice it to say that in this case, where we deal with publications concerning public officers performing public duties, the first amendment controls.

Id., n. 6.

Since Godbehere, the Arizona Supreme Court has held private defamation plaintiffs need not prove actual malice if their claims are based on unprivileged statements that involve private matters. See Turner v. Devlin, 174 Ariz. 201, 205, 848 P.2d 286, 299 (1993). Arizona has two standards for defamation claims. When defamation claims involve privileged statements, public figures, or matters of public concern, defamation plaintiffs must prove actual malice. See Revised Arizona Jury Instructions (Civil) 5th Defamation 1A and 4A. But when defamation claims involve unprivileged statements about private persons and their private affairs, defamation plaintiffs need only prove the statements were published negligently. See Revised Arizona Jury Instructions (Civil) 5th Defamation 1B and 4B. (You may access and read Arizona’s defamation jury instructions here).

It follows that Arizona has two standards for false light claims too. Below are proposed jury instructions for two types of false light claims, one where the plaintiff must prove actual malice and one where the plaintiff need only prove negligence. I also included instructions that define what a false light statement is and explain the negligence standard for false light invasion of privacy claims.

Invasion of Privacy by Publicity Placing Plaintiff in a False Light Where Actual Malice is Required — Elements

[Name of Plaintiff] claims [Name of Defendant] invaded [his or her] privacy by placing [him or her] before the public in a false light. In order for you to find for [Name of Plaintiff] on this claim, you must find by a preponderance of the evidence each of the following:

  1. [Name of Defendant] made, said, or wrote a public statement about [Name of Plaintiff];
  2. The statement portrayed [Name of Plaintiff] in a false light;
  3. The false light which the statement portrayed [Name of Plaintiff] would be highly offensive to a reasonable person;
  4. [Name of Plaintiff] had (injuries) (damages) (losses); and
  5. The invasion was a cause of [Name of Plaintiff]’s (injuries) (damages) (losses).

In addition, in order for you to find for [Name of Plaintiff] on this claim, you must find by clear and convincing evidence that

6.  At the time the statement was made, said, or written [Name of Defendant] either

    1. had serious doubts as to whether the statement contained false information, innuendo, insinuations, or suggestions about [Name of Plaintiff] or
    2. knew the statement contained false information, innuendo, insinuations, or suggestions about [Name of Plaintiff].

If you find that one of these statements has not been proved, then your verdict must be for [Name of Defendant].

If you find that these statements have been proved, (then your verdict must be for [Name of Plaintiff]) (then you must consider [Name of Defendant]’s affirmative defense(s) of [insert any affirmative defense that would be a complete defense to the plaintiff’s claim]).

If you find that (this affirmative defense) (any of these affirmative defenses) has been proved by a preponderance of the evidence, then your verdict must be for [Name of Defendant].

But if you find that (this affirmative defense has not) (none of these affirmative defenses has) been proved, then your verdict must be for [Name of Plaintiff].

Invasion of Privacy by Publicity Placing Plaintiff in a False Light Where Negligence is Standard — Elements

[Name of Plaintiff] claims [Name of Defendant] invaded [his or her] privacy by placing [him or her] before the public in a false light. In order for you to find for [Name of Plaintiff] on this claim, you must find by a preponderance of the evidence each of the following:

  1. [Name of Defendant] made, said, or wrote a public statement about [Name of Plaintiff] to either
  2. The statement portrayed [Name of Plaintiff] in a false light;
  3. The false light which the statement portrayed [Name of Plaintiff] would be highly offensive to a reasonable person;
  4. [Name of Defendant] was negligent in failing to determine that the statement would portray [Name of Plaintiff] in a false light;
  5. [Name of Plaintiff] had (injuries) (damages) (losses); and
  6. The invasion was a cause of [Name of Plaintiff]’s (injuries) (damages) (losses).

False Light — Defined

A statement portrayed [Name of Plaintiff] in a false light if it contained false innuendo, insinuations, or suggestions that made it a major misrepresentation of [Name of Plaintiff]’s character, history, activities, or beliefs.

Negligence

Negligence is the failure to use reasonable care in determining whether a statement would portray [Name of Plaintiff] in a false light or not. Negligence may consist of action or inaction. Negligence is the failure to act as a reasonable person would act under the circumstances.

By Ed Hopkins, HopkinsWay PLLC. | © HopkinsWay PLLC 2015. All rights reserved.

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